Delhi High Court
Wing Commander Shyam Naithani vs Union Of India And Ors on 15 March, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6483/2021 & CM APPL.20367/2021
WING COMMANDER SHYAM NAITHANI ..... Petitioner
Through: Mr.Ankur Chhibber, Advocate with
Mr.H.S. Tiwari, Mr. Anshuman
Mehrotra, Mr. Harsh Dhankar,
Mr. Nikunj Arora, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Vikram Jetly, Advocate.
Mr. Jatin Puniyani, Advocate.
+ W.P.(C) 5273/2021 & CM APPLs.16227/2021 and 18656/2021
WG CDR VIDHU SINGH ..... Petitioner
Through: Mr.Ankur Chhibber, Advocate with
Mr.H.S. Tiwari, Mr. Anshuman
Mehrotra, Mr. Harsh Dhankar,
Mr. Nikunj Arora, Advocates
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr.Harish Vaidyanathan Shankar,
Advocate with Mr.Syed Husain Adil
Taqvi, Advocates.
+ W.P.(C) 1720/2021 & CM APPLs.4963-4964/2021
EX CPL MADAN KUMAR SINGH ..... Petitioner
Through: Mr.Varun Singh, Advocate with
Mr.Akshay Dev and Ms.Alankriti
Dwivedi, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Harish Vaidyanathan Shankar,
Advocate with Ms.S.Bushra Kazim
and Mr.Karan Chhibber, Advocates.
Signature Not Verified
Digitally Signed W.P.(C) 6483/2021 & connected matters Page 1 of 27
By:KRISHNA BHOJ
Signing Date:15.03.2022
21:09:50
+ W.P.(C) 8171/2020
AMAR SINGH EX NB SUB & ORS. ..... Petitioners
Through: Mr.S.M. Dalal, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Harish Vaidyanathan Shankar,
Advocate with Ms.S.Bushra Kazim,
Advocate.
+ W.P.(C) 9627/2020
COL MUKUL DEV ..... Petitioner
Through: Mr.Rajiv Manglik, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Harish Vaidyanathan Shankar,
Advocate with Mr.Syed Husain Adil
Taqvi, Advocates.
Mr. Jatin Puniyani, Advocate.
Ms.Suparna Srivastava, CGSC with
Mr.Tushar Mathur, Ms. Soumya
Singh, Advocates.
+ W.P.(C) 1145/2021
EX AC ASHOK KUMAR DUBEY ..... Petitioner
Through: Mr.Randhir Singh Kalkal, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Virender Pratap Singh Charak,
Advocate with Ms.Shubhra Parashar,
Mr.Pushpender Singh Charak,
Mr.Kapil Gaur, Mr.Vaishnav Kirti
Singh, Mr.Shubham Ahujam,
Mr.Sanjay Singh Chauhan, Mr.Ram
Pal Singh Tomar, Mr.Gyanwardhan
Singh, Mr.Inderdeep Singh and
Mr.Vivek Nagar, Advocates.
Signature Not Verified
Digitally Signed W.P.(C) 6483/2021 & connected matters Page 2 of 27
By:KRISHNA BHOJ
Signing Date:15.03.2022
21:09:50
+ W.P.(C) 2513/2021
GP. CAPT. HARBAKSH SINGH MANIANI ..... Petitioner
Through: Mr.Naveen R.Nath, Sr.Advocate with
Mr.Rahul Jain, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.G.D.Shanna, Advocate with
Mr.Shoumendra Mukharjee,
Advocate.
+ W.P.(C) 3402/2021 & CM APPL.10345/2021
GP CAPT BHUPINDER SINGH ..... Petitioner
Through: Mr.P.K.Dhaka, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Dev P Bhardwaj, Advocate with
Mr.Mohit Bhardwaj, Advocate.
+ W.P.(C) 9846/2021 & CM APPL.30324/2021
735458 SGT JITENDRA SINGH ..... Petitioner
Through: Mr.Manoj Kumar Gupta, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Rajesh Kumar Das, Advocate for
R-1.
Mr.Anshuman, Advocate
+ W.P.(C) 13013/2021 & CM APPL.2828/2022
GP CAPT D VISWANATH ..... Petitioner
Through: Mr.Deepak Bansal, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Abhishek Singh, Advocate.
Signature Not Verified
Digitally Signed W.P.(C) 6483/2021 & connected matters Page 3 of 27
By:KRISHNA BHOJ
Signing Date:15.03.2022
21:09:50
+ W.P.(C) 235/2022 & CM APPL.657/2022
JWO RK JAISWAL EDN INSTR ..... Petitioner
Through: Mr.Girindra Kumar Pathak,
Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Amrita Prakash, Advocate.
+ W.P.(C) 1693/2022 & CM APPL.4889/2022
772233 CPL AJIT MOHANTY ..... Petitioner
Through: Mr. Manoj Kr. Gupta, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Harish Vaidyanathan Shankar,
Advocate with Mr.Karan Chibber and
Ms.S.Bushra Kazim, Advocate.
% Reserved On : 01st February, 2022
Date of Decision : 15th March, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
MANMOHAN, J:
CORE ISSUE
1. The issue that arises for consideration in the present batch of matters
is whether the power of Judicial Review, a basic feature of the Constitution
of India conferred upon the High Courts under Articles 226 and 227 has
been taken away totally in view of the judgment passed by the Supreme
Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and
Anr., (2015) 6 SCC 773 thereby denying litigants the right to approach High
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By:KRISHNA BHOJ
Signing Date:15.03.2022
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Court in writ jurisdiction against the judgment and orders passed by Armed
Forces Tribunal.
2. While learned counsel for the petitioners stated that a coordinate
Division Bench of this Court in Brijlal Kumar & Ors. vs. Union of India &
Ors., W.P.(C) 98/2020 decided on 24th November, 2020 has held that a writ
petition is maintainable against the final order passed by Armed Forces
Tribunal, learned counsel for the Respondents stated that the said judgment
is per incuriam as it is contrary to the judgment passed by the Apex Court
in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and
Anr.(supra) and the said judgment has not been set aside/overruled till date.
PRELIMINARY OBJECTION ON BEHALF OF THE RESPONDENTS
3. Mr.Harish Vaidyanathan Shankar as well as Mr. Anurag Ahluwalia,
learned counsel for Union of India while relying upon Union of India and
Ors. vs. Maj. Gen. Shri Kant Sharma and Anr (supra) submitted that the
Supreme Court has specifically held that High Courts should not entertain
writ petitions against judgments passed by Armed Forces Tribunal as the
parties have an alternative effective remedy of filing an appeal before the
Supreme Court under Armed Forces Tribunal Act, 2007. In support of their
submission, they relied upon the following portion of the said judgment,
wherein it has been held as under:-
"....36. The aforesaid decisions rendered by this Court can be
summarised as follows:
(i) The power of judicial review vested in the High Court under
Article 226 is one of the basic essential features of the
Constitution and any legislation including the Armed Forces
Tribunal Act, 2007 cannot override or curtail jurisdiction of the
High Court under Article 226 of the Constitution of
India.(Refer: L. Chandra Kumar [L. Chandra Kumar v. Union of
India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] and S.N.
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Mukherjee [(1990) 4 SCC 594 : 1990 SCC (Cri) 669] .)
(ii) The jurisdiction of the High Court under Article 226 and this
Court under Article 32 though cannot be circumscribed by the
provisions of any enactment, they will certainly have due regard to
the legislative intent evidenced by the provisions of the Acts and
would exercise their jurisdiction consistent with the provisions of
the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536] )
(iii) When a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the
statutory dispensation. (Refer: Nivedita Sharma [(2011) 14 SCC
337 : (2012) 4 SCC (Civ) 947] .)
(iv) The High Court will not entertain a petition under Article
226 of the Constitution if an effective alternative remedy is
available to the aggrieved person or the statute under which the
action complained of has been taken itself contains a mechanism
for redressal of grievance. (Refer: Nivedita Sharma [(2011) 14
SCC 337 : (2012) 4 SCC (Civ) 947] .)
xxxx xxxx xxxx
Likelihood of anomalous situation
42. If the High Court entertains a petition under Article 226 of
the Constitution of India against an order passed by the Armed
Forces Tribunal under Section 14 or Section 15 of the Act
bypassing the machinery of statute i.e. Sections 30 and 31 of the
Act, there is likelihood of anomalous situation for the aggrieved
person in praying for relief from this Court."
(emphasis supplied)
4. Learned counsel for the respondent-Union of India pointed out that
though the Supreme Court in Union of India vs. Thomas Vaidyan, Civil
Appeal No.5327/2015, vide order dated 16th November, 2015, has referred
the case of Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and
Anr. (supra) to a larger Bench, yet no order of interim stay of the said
judgment has been passed till date. They submitted that till the time the
referred question of law is decided by the larger bench, the judgment in
Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra)
constitutes a binding precedent.
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By:KRISHNA BHOJ
Signing Date:15.03.2022
21:09:50
5. They emphasised that an appeal is a statutory right and the Armed
Forces Tribunal Act, 2007 expressly prohibits an appeal against an interim
order. Thus, according to them, this Court should not entertain any writ
petition against the interim orders passed by Armed Forces Tribunal.
ARGUMENTS ON BEHALF OF THE PETITIONERS
6. Mr. Ankur Chhibber, Mr.Varun Singh, Mr.S.M. Dalal, Mr.Randhir
Singh Kalkal, Mr.P.K.Dhaka, Mr.Manoj Kumar Gupta, Mr.Deepak Bansal
and Mr.Girindra Kumar Pathak, learned counsel for the Petitioners admitted
that Sections 30 & 31 of Armed Forces Tribunal Act, 2007, provide for an
appeal to the Supreme Court against the final order passed by Armed Forces
Tribunal. They, however, stated that an appeal to the Supreme Court lies
only in such cases where question of general public importance is involved.
They pointed out that an appeal lies with the leave of the Armed Forces
Tribunal and such leave cannot be granted unless it is certified by the
Tribunal that a point of law of general public importance is involved in the
decision passed. They contended that matters concerning pay, pension,
promotion and discipline are matters personal to the litigants and do not
involve any substantial question of law of general public importance. They
stated that in such matters, no leave to appeal can be granted under Section
31 of the Armed Forces Tribunal Act, 2007. Thus, according to them, the
right to appeal to the Supreme Court under Sections 30 & 31 of the Armed
Forces Tribunal Act, 2007 is limited and is not an alternative effective
remedy. They stated that a litigant cannot be left high and dry without there
being any provision for further appeal against the Armed Forces Tribunal.
7. Learned counsel for the Petitioners submitted that the Constitution
Bench of the Supreme Court in Rojer Mathew vs. South Indian Bank Ltd.
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By:KRISHNA BHOJ
Signing Date:15.03.2022
21:09:50
& Ors. (2020) 6 SCC 1, after considering the judgment passed by the
Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant
Sharma and Anr. (supra), has held that Article 136 (2) of the Constitution
of India prohibits direct appeal to the Supreme Court from an order passed
by Armed Forces Tribunal. They stated that the Constitution Bench has
further held that the said provision does not prohibit an appeal to the
Supreme Court against the judicial review exercised by the High Court
under Article 226 of the Constitution of India. They emphasised that the
Constitution Bench in Rojer Mathew (supra) has held that the limited ouster
made by Article 227(4) of the Constitution of India only operates qua
administrative supervision by the High Court and not with regard to the
judicial review.
8. They pointed out that thereafter the Supreme Court in the case of
Balkrishna Ram vs. Union of India and Anr., (2020) 2 SCC 442 has
explicitly disagreed with the view taken in Union of India and Ors. vs. Maj.
Gen. Shri Kant Sharma and Anr. (supra) and has held that the High Courts
would be justified in entertaining writ petitions in cases of glaring illegality
committed by the Armed Forces Tribunal and in such cases where it seems
to the High Courts that they should exercise their power to entertain a writ
petition against a final order passed by Armed Forces Tribunal.
9. Thus, according to them the only way to challenge the matters
involving pay, pension, promotion and discipline and not involving a
substantial question of law of general public importance, is to challenge the
same before the High Court by way of a writ petition, as the jurisdiction of
the Supreme Court is barred.
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By:KRISHNA BHOJ
Signing Date:15.03.2022
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REJOINDER ARGUMENTS ON BEHALF OF THE RESPONDENTS
10. In rejoinder, learned counsel for the Union of India submitted that
paragraph 215 of the judgment passed by Constitution Bench in Rojer
Mathew (supra) does not constitute a binding precedent as it is not the ratio
decidendi of the said judgment. In support of their submission they relied
upon the judgment passed by the Supreme Court in State of Gujarat vs.
Utility Users Association (2018) 6 SCC 21, wherein it has been held that in
order to determine what is ratio decidendi, the Inversion Test has to be
applied. The relevant portion of the said judgment is reproduced
hereinbelow:-
"...114. In order to test whether a particular proposition of law is to
be treated as the ratio decidendi of the case, the proposition is to be
inversed i.e. to remove from the text of the judgment as if it did not
exist. If the conclusion of the case would still have been the same even
without examining the proposition, then it cannot be regarded as
the ratio decidendi of the case. This test has been followed to imply
that the ratio decidendi is what is absolutely necessary for the
decision of the case. "In order that an opinion may have the weight of
a precedent", according to John Chipman Grey [Another
distinguished jurist who served as a Professor of Law at Harvard Law
School.] , "it must be an opinion, the formation of which, is necessary
for the decision of a particular case"."
11. According to them applying the Inversion Test, it is trite that
paragraph 215 of Rojer Mathew (supra) is not ratio decidendi and thereby,
not a binding precedent.
12. They further submitted that the judgment passed by the Supreme
Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and
Anr. (supra) had not been expressly over-ruled either in Rojer Mathew
(supra) or in Balkrishna Ram (supra) and, thus, the judgment of this Court
in Brijlal Kumar & Ors. (supra) was per incuriam.
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By:KRISHNA BHOJ
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13. In the alternative, they submitted that the Constitution Bench in Rojer
Mathew (supra) had not considered the effect of Article 33 of the
Constitution of India, which reads as under:-
"33. Parliament may, by law, determine to what extent any of
the rights conferred by this Part shall, in their application to,--
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of
public order; or
(c) persons employed in any bureau or other organisation
established by the State for purposes of intelligence or counter
intelligence; or
(d) person employed in, or in connection with, the
telecommunication systems set up for the purposes of any
Force, bureau or organisation referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge
of their duties and the maintenance of discipline among them."
14. They emphasised that the Supreme Court in Prithi Pal Singh Bedi vs.
Union of India & Anr., (1982) 3 SCC 140 has held as under:-
"15. Article 33 confers power on the Parliament to determine to
what extent any of the rights conferred by Part III shall, in their
application to the members of the Armed Forces, be restricted
or abrogated so as to ensure the proper discharge of duties and
maintenance of discipline amongst them. Article 33 does not
obligate that Parliament must specifically adumbrate each
fundamental right enshrined in Part III and to specify in the law
enacted in exercise of the power conferred by Article 33 the
degree of restriction or total abrogation of each right. That
would be reading into Article 33 a requirement which it does
not enjoin. In fact, after the Constitution came into force, the
power to legislate in respect of any item must be referable to an
entry in the relevant list. Entry 2 in List I: Naval, Military and
Air Forces; any other Armed Forces of the Union would enable
Parliament to enact the Army Act and armed with this power
the Act was enacted in July 1950. It has to be enacted by the
Parliament subject to the requirements of Part III of the
Constitution read with Article 33 which itself forms part of Part
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III. Therefore, every provision of the Army Act enacted by the
Parliament, if in conflict with the fundamental rights conferred
by Part III, shall have to be read subject to Article 33 as being
enacted with a view to either restricting or abrogating other
fundamental rights to the extent of inconsistency or repugnancy
between Part III of the Constitution and the Army Act. This is
no more res integra in view of the decision of the Constitution
Bench of this Court in Ram Sarup v. Union of India [AIR 1965
SC 247 : (1964) 5 SCR 931 : (1965) 1 Cri LJ 236] in which
repelling the contention that the restriction or abrogation of the
fundamental rights in exercise of the power conferred by Article
33 is limited to one set out in Section 21 of the Act, this Court
observed as under :
... The learned Attorney-General has urged that the entire Act
has been enacted by Parliament and if any of the provisions
of the Act is not consistent with the provisions of any of the
Articles in Part III of the Constitution, it must be taken that to
the extent of the inconsistency Parliament had modified the
fundamental rights under those Articles in their application
to the person subject to that Act. Any such provision in the
Act is as much law as the entire Act. We agree that each and
every provision of the Act is a law made by Parliament and
that if any such provision tends to affect the fundamental
rights under Part III of the Constitution, that provision does
not, on that account, become void, as it must be taken that
Parliament has thereby, in the exercise of its power under
Article 33 of the Constitution, made the requisite
modification to affect the respective fundamental rights....
Section 21 merely confers an additional power to modify rights
conferred by Article 19(1)(a) and (c) by Rules and such rules
may set out the limits of restriction. But the specific provision
does not derogate from the generality of power conferred by
Article 33. Therefore, it is not possible to accept the submission
that the law prescribing procedure for trial of offences by court
martial must satisfy the requirement of Article 21 because to the
extent the procedure is prescribed by law and if it stands in
derogation of Article 21, to that extent Article 21 in its
application to the Armed Forces is modified by enactment of the
procedure in the Army Act itself."
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By:KRISHNA BHOJ
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15. They also stated that the Supreme Court in Rojer Mathew (supra) did
not have the opportunity to consider the Statement of Objects and Reasons
of the Armed Forces Tribunal Act, 2007 which clearly stipulates that the
reason for establishment of the Tribunal was due to large number of cases
pending before the High Courts. They stated that, in the event, the
contentions of the Petitioners were to be accepted, it would lead to the same
situation once again which was precisely why the Armed Forces Tribunal
Act, 2007 was enacted.
COURT'S REASONING
THE POWER OF JUDICIAL REVIEW UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION IS A PART OF THE BASIC STRUCTURE OF
THE CONSTITUTION. SECTION 14 OF THE ACT, 2007 ITSELF
PRESERVES THE WRIT JURISDICTION OF THE HIGH COURTS
16. The Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah
and Anr., (1955) 2 SCR 1 1 has held that the jurisdiction of the High Court
under Article 226 and of the Supreme Court under Article 136 of the
Constitution entitles the Constitutional Courts to examine as to whether the
Tribunals have acted illegally and these powers cannot be ousted by a
statute. It was further held that Articles 226 and 136 of the Constitution are
The relevant portion of the judgment of the Supreme Court in Sangram Singh Vs. Election Tribunal,
Kotah and Anr. (supra) is reproduced hereinbelow:
"13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to
examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction
cannot be taken away by a legislative device that purports to confer power on a tribunal to act
illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses
to say they are legal. The legality of an act or conclusion is something that exists outside and apart
from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally
determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme
Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and
they alone can pronounce with authority and finality on what is legal and what is not. All that an
inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles
226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the
Supreme Court above them remains to its fullest extent despite Section 105."
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part of the law of the land which cannot be finally determined and altered by
any Tribunal of limited jurisdiction.
17. This Court finds that Section 14 of the Armed Forces Tribunal Act,
2007 itself explicitly stipulates that though the Tribunal has wide powers,
yet it does not exercise the power of the Supreme Court or the High Court
under Articles 226 and 227 of the Constitution of India. Consequently, the
Armed Forces Tribunal Act, 2007 itself preserves the writ jurisdiction of the
High Courts.
18. Under The Administrative Tribunals Act, 1985, where the writ
jurisdiction of the High Court was not preserved, the seven Judges' Bench of
the Supreme Court in L.Chandra Kumar Vs. UOI and Ors., (1997) 3 SCC
2612 has held that judicial review is a part of basic structure of the
Constitution and that the power of judicial review of the High Courts and the
Supreme Court cannot be taken away.
19. The argument that in view of Article 227(4) of the Constitution, the
High Court has no power of judicial superintendence over the Armed Forces
Tribunal is untenable as Article 227(4) only takes away the administrative
superintendence of Courts over the Tribunal relating to armed forces. In,
L.Chandra Kumar (supra) and Rojer Mathew (supra), it has been
categorically held by the Supreme Court that the power of judicial
superintendence has not and can never be taken away.
78. .....We, therefore, hold that the power of judicial review over legislative action vested in the
High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the
power of High Courts and the Supreme Court to test the constitutional validity of legislations can never
be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the
decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure
of the Constitution. This is because a situation where the High Courts are divested of all other judicial
functions apart from that of constitutional interpretation, is equally to be avoided."
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20. Consequently, the power of judicial review under Articles 226 and
227 of the Constitution vests with the High Court even with regard to
judgments and orders passed by the Armed Forces Tribunal and this power
is a part of the basic structure of the Constitution as has been held in
L.Chandra Kumar (supra) Rojer Mathew (supra) 3.
ARTICLE 33 OF THE CONSTITUTION DOES NOT RESTRICT OR
CURTAIL THE RIGHT OF PERSON IN UNIFORM TO FILE A WRIT
PETITION
21. Article 33 of the Constitution does not restrict or curtail the right of a
person in uniform to file a writ petition. By virtue of Article 33 of the
Constitution, the Parliament, while enacting the Army Act (Rule 21), the Air
Force Act and the Navy Act, has only prohibited members of the armed
forces from taking part in political and non-military activities. These are the
only restrictions provided under the said statutes. There is no provision in
any of the aforesaid three statutes which prohibits filing of writ petitions
under Articles 226 and 227 of the Constitution. Consequently, the judgment
in Prithi Pal Singh Bedi (supra) has no application to the present case.
215. It is hence clear post L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 :
1997 SCC (L&S) 577] that writ jurisdiction under Article 226 does not limit the powers of High Courts
expressly or by implication against military or armed forces disputes. The limited ouster made by Article
227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2)
prohibits direct appeals before the Supreme Court from an order of Armed Forces Tribunals, but would not
prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article
226.......
217. The jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor
diluted. Instead, it has to be zealously protected and cannot be circumscribed by the provisions of any
enactment, even if it be formulated for expeditious disposal and early finality of disputes. Further, High
Courts are conscious enough to understand that such power must be exercised sparingly by them to ensure
that they do not become alternate forums of appeal......."
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By:KRISHNA BHOJ
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ACCESS TO JUSTICE IS A BASIC AND INALIENABLE HUMAN RIGHT
WHICH IS A PART AND PARCEL OF THE RIGHT TO LIFE IN INDIA
22. The remedy of appeal to Apex Court in a large number of cases may
also prove to be ineffective for the members of the Armed Forces posted all over
India, as they may find it expensive and difficult to approach the Apex Court.
23. Further, appeals in the highest Court would result in clogging of
dockets and preventing the Apex Court from discharging its primary
Constitutional role. The Supreme Court in Gujarat Urja Vikas Nigam
Limited Vs. Essar Power Limited, (2016) 9 SCC 103 4 has held that it can
31. In L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997
SCC (L&S) 577] , in the course of considering the constitutional validity of exclusion of jurisdiction of the High
Courts in service matters against the orders of the Central Administrative Tribunal, this Court observed that the
manner in which justice is dispensed with by the tribunals left much to be desired. The remedy of appeal to
this Court from the order of the tribunals was too costly and inaccessible for it to be real and effective.
Furthermore, the result of providing such remedy was that the docket of this Court was crowded with
decisions of the tribunals and this Court was forced to perform the role of a first appellate court. It was
necessary that the High Courts are able to exercise judicial superintendence over decisions of the tribunals. With
these observations this Court directed that "all" decisions of the tribunals will be subject to the High Court's
writ jurisdiction under Articles 226/227 [L. Chandra Kumar case, (1997) 3 SCC 261, para 91]. It was further
observed that the then existing position of direct appeal to this Court from orders of the tribunal will stand
modified.
xxx xxx xxx
37. In Mathai v. George [Mathai v. George, (2010) 4 SCC 358 : (2010) 2 SCC (Civ) 142 : (2010) 2 SCC (Cri)
835 : (2010) 1 SCC (L&S) 1035], this Court referred to R.K. Jain Memorial Lecture delivered on 30-1-2010 by
Shri K.K. Venugopal, Senior Advocate to the effect that: (SCC p. 364, para 15)
"15. ... an alarming state of affairs has developed in this Court because this Court has gradually converted
itself into a mere court of appeal which has sought to correct every error which it finds in the judgments of
the High Courts of the country as well as the vast number of tribunals."
The court has strayed from its original character as a constitutional court and the Apex Court of the country.
Failure to hear and dispose of cases within reasonable time erode confidence of the litigants in the Apex Court.
Reference was made to an article by Justice K.K. Mathew to the effect that time, attention and energy should be
devoted to matters of larger public concern. Functioning of the Supreme Court was not to remedy a particular
litigant's wrong, but consideration of cases involving principles of wide public or governmental interest which
ought to be authoritatively declared by the final court. The docket of the court should be kept down so that its
volume did not preclude wise adjudication.
xxx xxx xxx
40. While there may be no lack of legislative competence with Parliament to make provision for direct appeal to
the Supreme Court from orders of tribunals but the legislative competence is not the only parameter of
constitutionality. It can hardly be gainsaid that routine appeals to the highest court may result in obstruction of
the constitutional role assigned to the highest court as observed above. This may affect the balance required to
be maintained by the highest court of giving priority to cases of national importance, for which larger Benches
may be required to be constituted. Routine direct appeals to the highest court in commercial litigation affecting
individual parties without there being any issue of national importance may call for reconsideration at
appropriate levels."
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hardly be gainsaid that routine appeals to the highest Court results in
obstruction of the constitutional role assigned to the highest Court.
24. In fact, in Gujarat Urja (supra), the Supreme Court of India made a
reference to the Law Commission to examine and submit a Report
pertaining to various issues including providing of direct statutory appeals to
the Supreme Court from the order passed by Tribunals bypassing the High
Courts. The Law Commission 5 has opined that High Courts have
unquestionable power of superintendence and control over the Tribunals and
the parties aggrieved by the Armed Forces Tribunal Act, 2007 can approach
the High Courts under writ jurisdiction.
25. This Court is also of the view that access to justice is a basic and
inalienable human right which civil societies recognize and enforce. It has
The Law Commission of India in its Report No.272 states, " 8.1 Access to justice is a fundamental
right of the citizens..... The questions arise as to whether bypassing the jurisdiction of the High Courts
violates the right of access to justice or the principle of Federalism, which is a basic feature of the
Constitution. The framers of the Constitution deemed it proper to adopt the Federal structure in the
judicial hierarchy also. While the Supreme Court is the Apex Court of the Country, the High Courts
are the Highest Courts in the States. In the Constitutional scheme, the High Court is not stricto-senso
subordinate to the Supreme Court. They are assigned a broad Constitutional role with extensive
Constitutional responsibilities. Their power to issue writs is wider than the Supreme Court. Besides,
the power of judicial review is also vested in them.....
The High Courts have unquestionable power of superintendence and control over the Tribunals under the
Constitution. However, the overriding effect in Articles 323-A and 323-B under Part IXV-A cannot in any
case denude the High Court of its power of superintendence under Article 227 of the Constitution. The
exclusion of jurisdiction of all the Courts except the Supreme Court cannot be construed to mean that the
power of judicial review vested in the High Court is also excluded.......
........As a general rule, the writ court may entertain a petition if substantial injustice has ensued or is
likely to ensue or there has been a breach of fundamental principle of justice. The existence of an equally
efficacious, adequate and suitable legal remedy is a point of consideration in the matter of granting writs.
Under the rule of self-imposed restraint, the writ court may refuse to entertain a petition if it is satisfied
that parties must be relegated to the court of appeal or revision or asked to set right mere errors of law
which do not occasion injustice in a broad and general sense, unless the order is totally erroneous or
raises issues of jurisdiction or of infringement of fundamental right of the petitioner.........
I.........The provisions of Section 3(o) of the Armed Forces Tribunal Act, 2007 and the parties
aggrieved in those matters can approach the High Court under writ jurisdiction. The Act excludes the
jurisdiction of the High Court under Article 227(4) but not under Article 226. In matters, where AFT
has jurisdiction, parties must have a right to approach the High Court under Article 226 for the reason
that a remedy under Article 136 is not by way of statutory appeal. The issue is pending for
consideration before the larger Bench of the Supreme Court".
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been repeatedly held that access to justice is a part and parcel of the right to
life in India and this right is so basic and inalienable that no system of
governance can possibly ignore its significance leave alone afford to deny
the same to its citizens. (See: Anita Kushwaha vs. Pushpa Sudan (2016) 8
SCC 509 and Gujarat Urja Vikas Nigam Limited vs. Essar Power Limited
(2016) 9 SCC 103). In fact, even the Law Commission of India in its Report
No.272 admits that access to justice is a Fundamental Right of the citizens
and the power of judicial review also vests in the High Courts. (See: The
Law Commission of India's Report No.272)
NEITHER SECTION 30 NOR SECTION 31 OF THE ARMED FORCES
TRIBUNAL ACT, 2007 CONSTITUTES AN ALTERNATIVE EFFECTIVE
REMEDY IN ALL CASES
26. In Ex. Lac Yogesh Pathania vs. Union of India & Others, (2019) 4
SCC 311, it has been held that the Apex Court will exercise jurisdiction
under Sections 30 and 31 6 of the Armed Forces Tribunal Act, 2007 only
where substantial question of law of general public importance is involved.
27. The Law Commission of India in its Report No.272, after relying on
Segal, Zeev, "The Power to Probe into Matters of Vital Public
Importance", 58 TLR 941 (1984), has opined that a question cannot be said
to be of public importance unless it is important throughout the State. The
Law Commission has opined that the matters of public importance may
mean matters relating to Governmental action or inaction which arouse
something in the nature of a nationwide crisis of confidence.
"Section 30. Appeal to Supreme Court. - (1) Subject to.......31, an appeal shall lie to the Supreme
Court against the final decision or order of the Tribunal............provided there shall be no appeal
against an interlocutory order of the Tribunal.
Section 31. Leave to appeal. - (1) An appeal to the Supreme Court shall lie with the leave of the
Tribunal.........that a point of law of general public importance is involved.......or it appears to the
Supreme Court that the point is one which ought to be considered by that Court."
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28. In Council of Scientific and Industrial Research and Anr. Vs.
K.G.S. Bhatt and Anr., (1989) 4 SCC 635, Union of India and Ors. Vs.
CDR. Ravindra V. Desai, (2018) 16 SCC 273 and Union of India and Anr.
Vs. Ex. Naik Surendra Pandey, (2015) 13 SCC 625, it has been held that
issues such as pay, pension, promotion and discipline are personal to
litigants and do not involve any question of law of general public
importance.
29. As against interlocutory order of the Armed Forces Tribunal, Section
30 of the Act itself provides that no appeal to the Supreme Court shall be
maintainable.
30. Consequently, this Court is of the view that neither Section 30 nor
Section 31 of the Armed Forces Tribunal Act, 2007 which provide for leave
to appeal to the Supreme Court constitute an alternative effective remedy in
all cases where the parties are aggrieved by the decision passed by Armed
Forces Tribunal and where the Tribunal refuses leave to appeal.
PARAGRAPH 215 OF THE CONSTITUTION BENCH'S JUDGMENT IN
ROJER MATHEW (SUPRA) CONSTITUTES RATIO DECIDENDI OF THE
SAID JUDGMENT
31. The decision passed in Rojer Mathew (supra) is not a case where the
Constitution Bench made a passing reference to the decision passed in
Union of India & Ors. vs Maj. Gen. Shri Kant Sharma (supra). In fact, it
was pursuant to specific Question No.7 framed by the Constitution Bench
that the same was answered in paragraph 215 of Rojer Mathew (supra).
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32. It is settled law that in the light of the question before the Court, the
principal underlying the decision constitutes the ratio decidendi 7.
33. This Court is also of the view that reference order in Union of India
vs. Thomas Vaidyan (supra) does not constitute a bar on the Constitution
Bench from deciding the issue.
34. Consequently, paragraph 215 of the Constitution Bench's judgment in
Rojer Mathew (supra) constitutes ratio decidendi of the said judgment and
also constitutes a binding precedent in accordance with the inversion test
In Director of Settlements, A.P. and Ors. Vs. M.R. Apparao and Anr., (2002) 4 SCC 638, the
Apex Court has held as under:-
"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally
indicates that the law declared by the Supreme Court shall be binding on all courts within
the territory of India. The aforesaid Article empowers the Supreme Court to declare the
law. It is, therefore, an essential function of the Court to interpret a legislation. The
statements of the Court on matters other than law like facts may have no binding force as
the facts of two cases may not be similar. But what is binding is the ratio of the decision
and not any finding of facts. It is the principle found out upon a reading of a judgment as a
whole, in the light of the questions before the Court that forms the ratio and not any
particular word or sentence. To determine whether a decision has "declared law" it
cannot be said to be a law when a point is disposed of on concession and what is binding is
the principle underlying a decision. A judgment of the Court has to be read in the context
of questions which arose for consideration in the case in which the judgment was
delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by
the Court on a legal question suggested in a case before it but not arising in such manner
as to require a decision. Such an obiter may not have a binding precedent as the
observation was unnecessary for the decision pronounced, but even though an obiter may
not have a binding effect as a precedent, but it cannot be denied that it is of considerable
weight. The law which will be binding under Article 141 would, therefore, extend to all
observations of points raised and decided by the Court in a given case. So far as
constitutional matters are concerned, it is a practice of the Court not to make any
pronouncement on points not directly raised for its decision. The decision in a judgment of
the Supreme Court cannot be assailed on the ground that certain aspects were not
considered or the relevant provisions were not brought to the notice of the Court
(see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur [(1970) 2 SCC
267 : AIR 1970 SC 1002] and AIR 1973 SC 794 [ (sic)] ). When the Supreme Court decides
a principle it would be the duty of the High Court or a subordinate court to follow the
decision of the Supreme Court. A judgment of the High Court which refuses to follow the
decision and directions of the Supreme Court or seeks to revive a decision of the High
Court which had been set aside by the Supreme Court is a nullity. (See Narinder
Singh v. Surjit Singh [(1984) 2 SCC 402] and Kausalya Devi Bogra v. Land Acquisition
Officer [(1984) 2 SCC 324] .)....."
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laid down in the case of State of Gujarat vs. Utility Users Association
(supra).
THE SUPREME COURT IN BALKRISHNA RAM (SUPRA) REINSTATED
THE RIGHT TO CHALLENGE VERDICTS OF THE AFT IN THE HIGH
COURTS
35. The argument of the respondents that the judgment passed in Union
of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra)
continues to be good law as it has not been expressly overruled either in
Rojer Mathew (supra) or in Balkrishna Ram (supra) is not correct.
36. In the case of Rojer Mathew (supra), the Supreme Court had framed
various questions of law to be answered by the Constitution Bench. One of
the issues framed for consideration by the Constitution Bench was Question
No.7, namely, "Whether direct statutory appeals from tribunals to the
Supreme Court ought to be detoured?"
37. The said question was dealt with by the Constitution Bench from
paragraph 194 of the said judgment and in paragraph 200 (xvi), Section 30
of the Armed Forces Tribunal Act, 2007 was expressly referred to. After
discussing the judgment in Maj. Gen. Shri Kant Sharma (supra) as well as
the judgment in L.Chandra Kumar (supra), the Constitution Bench in Rojer
Mathew (supra) gave its conclusion in paragraph 215 that Article 136(2) of
the Constitution prohibits direct appeal to the Supreme Court from an order
passed by the Armed Forces Tribunal but does not prohibit an appeal to the
Supreme Court against the judicial review exercised by the High Court
under Article 226 of the Constitution.
38. In paragraphs 12, 13 and 14 of the judgment passed in Balkrishna
Ram (supra), the Supreme Court has held that the reliance placed by the
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respondents therein on the judgment passed in Union of India and Ors. vs.
Maj. Gen. Shri Kant Sharma and Anr. (supra) was 'entirely misplaced' as
the said judgment could not have overruled the judgment passed by the
Constitution Bench in L.Chandra Kumar (supra).
39. Further, the Supreme Court in Balkrishna Ram (supra) has not only
expressed doubt with regard to correctness of directions (iii) and (iv)
contained in paragraph 36 of the judgment in Union of India and Ors. vs.
Maj. Gen. Shri Kant Sharma and Anr. (supra), but it went on to hold that
there cannot be a blanket ban on exercise of writ jurisdiction because that
would effectively mean that writ Court is denuded of its jurisdiction to
entertain such writ petitions which is not the law laid down in L.Chandra
Kumar (supra). The Supreme Court in Balkrishna Ram (supra) 8 has also
held that it will be for the High Courts to decide in the peculiar facts and
circumstances of each case whether they should exercise its extraordinary
"12. Reliance placed by Ms Dwivedi on the judgment of this Court in Shri Kant Sharma [Union of
India v. Shri Kant Sharma, (2015) 6 SCC 773 : (2015) 2 SCC (L&S) 386] is entirely misplaced. The
issue before this Court in this case was whether the High Court was justified in entertaining writ
petitions against the orders of AFT. This is a judgment by two Judges and obviously it cannot overrule
the judgment of the Constitution Bench in L. Chandra Kumar [L. Chandra Kumar v. Union of India,
(1997) 3 SCC 261 : 1997 SCC (L&S) 577] . The Division Bench, after referring to various judgments
including the judgment in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 :
1997 SCC (L&S) 577] , summarised its findings in para 36 as follows: (Shri Kant Sharma case [Union
of India v. Shri Kant Sharma, (2015) 6 SCC 773 : (2015) 2 SCC (L&S) 386] , SCC pp. 804-805).........
13... We have our doubt, with regard to the correctness of Directions (iii) and (iv) of the judgment, since
in our opinion it runs counter to the judgment rendered by the Constitution Bench.
14... There may be cases where the High Court would be justified in exercising its writ jurisdiction
because of some glaring illegality committed by AFT. One must also remember that the alternative
remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior
Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may
not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to
approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and
circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There
cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the
writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down
in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S)
577] ."
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writ jurisdiction or not. Consequently, the Supreme Court in Balkrishna
Ram (supra) reinstated the right to challenge verdicts of the AFT in the High
Courts.
THE JURISDICTION OF A WRIT COURT IS VASTLY DIFFERENT AND
DISTINCT FROM THAT OF AN APPELLATE COURT
40. However, this Court would like to clarify that a right to appeal is a
creation of Statute and it cannot be claimed as a matter of right. The right to
appeal has to exist. It cannot be created by acquiescence of the parties or by
the order of the Court. It is neither a natural nor an inherent right attached to
the litigant being a substantive, statutory right. [See: United Commercial
Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Kondiba Dagdu Kodam
v. Savitribai Sopan Gujar, AIR 1999 SC 2213; and UP Power Corporation
Ltd. v. Virenddra Lal, (2013) 10 SCC 39]. Jurisdiction cannot be conferred
by mere acceptance, acquiescence, consent or by any other means as it can
be conferred only by the legislature as conferring jurisdiction upon a Court
or Authority, is a legislative function. There is no right to appeal against an
order/judgment passed by the Armed Forces Tribunal to the High Court.
41. The jurisdiction of a writ Court under Article 226 of the Constitution
is vastly different and distinct from that of an appellate Court. The writ
Court, while examining the judgment passed by the Tribunal, will exercise
the power of judicial review which means that the Court shall examine the
decision-making process and interfere only for correcting errors of
jurisdiction or errors apparent on the face of record or if the Tribunal has
acted illegally. [See:Hari Vishnu Kamath versus Syed Ahmad Ishaque and
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Ors., (1955) 1 SCR 1104 9 and Surya Dev Rai Vs. Ram Chander Rai & Ors,
(2003) 6 SCC 675 . Further, the aforesaid judgment was followed by the
Supreme Court in the case of Sameer Suresh Gupta Through PA Holder
Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors., (1955) 1 SCR 1104
"21. ......On these authorities, the following propositions may be taken as established: (1)
Certiorari will be issued for correcting errors of jurisdiction......(2) Certiorari will also be
issued when the court or Tribunal acts illegally ......as when it.... violates the principles of
natural justice (3) The court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction..... (4)......when the decision of the inferior Court or Tribunal is
erroneous in law.......
22. It may therefore be taken as settled that a writ of certiorari could be issued to correct.....
an error apparent on the face of the record?.....an error apparent on the face of the record
cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent
in its very nature, and it must be left to be determined judicially on the facts of each case."
Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675
"38.........
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of
jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by
assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by
overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or
the rules of procedure or acting in violation of principles of natural justice where there is no
procedure specified, and thereby occasioning failure of justice.
xxx xxx xxx
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the following requirements are satisfied : (i) the
error is manifest and apparent on the face of the proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure
of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated
without involving into any lengthy or complicated argument or a long-drawn process of
reasoning. Where two inferences are reasonably possible and the subordinate court has chosen
to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the judicial conscience of the High Court dictates
it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be
invoked during the pendency of any suit or proceedings in a subordinate court and the error
though calling for correction is yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or
early disposal of the suit or proceedings. The High Court may feel inclined to intervene where
the error is such, as, if not corrected at that very moment, may become incapable of correction
at a later stage and refusal to intervene would result in travesty of justice or where such refusal
itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself
into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors
in drawing inferences or correct errors of mere formal or technical character."
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Vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 and it was held that the
power of superintendence conferred on Article 227 of the Constitution is
supervisory and that the power of judicial superintendence must be
exercised sparingly to keep the subordinate Courts and Tribunals within the
limits of their authority. Consequently, a writ petition is not an appeal in
disguise. It is not even a substitute for an appeal.
CONCLUSION
42. To conclude, a Tribunal has to function under the Statute, whereas the
higher judiciary (High Courts and the Supreme Court), which is a
Constitutional authority, is entrusted not only with the task of interpreting
the laws and the Constitution, but also with judicial superintendence over
the Tribunals in order to preserve the independence of judiciary while
discharging the sovereign function of dispensing justice. The Constitution
confers on the Constitutional Court the power of judicial review which is
exclusive in nature. Judicial review goes some way to answer the age old
question 'who guards the guards'? Judicial review among many other
important aspects of the Constitution is indispensable and while creating any
other mode of adjudication of disputes, the judicial review cannot be
compromised with.
43. Consequently, the power of judicial review has consistently been held
to be one of the basic features of the Constitution. Basic feature i.e. forming
core structure of the Constitution. The said core structure cannot be affected
even by way of constitutional amendment. (See: Kesavananda Bharati
Sripadagalveru versus State of Kerala, (1973) 4 SCC 225)
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44. The jurisdiction of High Court under Articles 226 and 227 of the
Constitution cannot be bypassed merely by making a provision for direct
appeal to the Supreme Court against an order of a Tribunal for the reason
that the Apex Court exercises jurisdiction under Sections 30 and 31 of the
Armed Forces Tribunal Act, 2007 only if a point of law of general public
importance is involved. In Ex. Lac Yogesh Pathania (supra), the Supreme
Court has clarified that appeals under the Armed Forces Tribunal Act are
considered only if a point of general public importance is involved.
45. The Armed Forces Tribunal Act, 2007 excludes the administrative
supervision of the High Court under Article 227(4) of the Constitution but
not judicial superintendence and certainly not jurisdiction under Article 226
of the Constitution.
46. In Rojer Mathew (supra) judgment, a Constitution Bench of the
Supreme Court has held that Article 226 of the Constitution does not restrict
writ jurisdiction of High Courts over the Armed Forces Tribunal observing
the same can neither be tampered with nor diluted. Instead, the Supreme
Court has held that High Court's jurisdiction has to be zealously protected
and cannot be circumscribed by the provisions of any enactment.
47. The Supreme Court in Balkrishna Ram (supra) following the earlier
judgment passed by a seven-judges Bench in the case of L.Chandra Kumar
(supra) has observed that the writ jurisdiction of High Courts over Tribunals
cannot even be taken away by a legislative or constitutional amendments
and the 2015 judgment of Union of India and Ors. versus. Maj. Gen. Shri
Kant Sharma and Anr.(supra) by a Bench of two Judges cannot overrule the
law already laid down. It has also held that the remedy of a direct appeal
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from the order passed by Armed Forces Tribunal to the Supreme Court
would be extremely difficult and beyond the monetary reach of an ordinary
litigant. Consequently, the Supreme Court in Balkrishna Ram (supra)
reinstated the right to challenge verdicts of the Armed Forces Tribunal in the
High Courts.
48. However, the Writ Court while examining the judgment/order passed
by the Tribunal, will exercise the power of judicial review which means that
the Court shall examine the decision-making process and interfere only for
correcting errors of jurisdiction or errors apparent on the face of record or if
the Tribunal acts illegally. (See: Hari Vishnu Kamath (supra); Surya Dev
Rai (supra) and Rajendra Diwan versus Pradeep Kumar Ranibala and
Anr. (2019) 20 SCC 143.)
49. This Court would like to emphasise, with all the power that it
commands, that judicial restraint should be exercised when the reasons that
a tribunal gives for its decision are being examined. Further, the writ
jurisdiction of High Court cannot be exercised "in the cloak of an appeal in
disguise". (See: Rajendra Diwan versus Pradeep Kumar Ranibala and
Anr., (2019) 20 SCC 143).11
"85. The power of superintendence conferred by Article 227 is, however, supervisory and not
appellate. It is settled law that this power of judicial superintendence must be exercised sparingly, to
keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted
within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction
unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction under Article 227
cannot be exercised "in the cloak of an appeal in disguise".
86. In exercise of its extraordinary power of superintendence and/or judicial review under Articles 226
and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law
which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of
principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-
assess or re-analyse the evidence and/or materials on record. Whether the High Court would exercise
its writ jurisdiction to test a decision of the Rent Control Tribunal would depend on the facts and
circumstances of the case. The writ jurisdiction of the High Court cannot be converted into an
alternative appellate forum, just because there is no other provision of appeal in the eye of the law."
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50. Keeping in view the aforesaid conclusions, the preliminary objection
raised by Union of India with regard to the maintainability of the present
writ petitions is rejected. List the present batch of matters before the roster
bench for consideration in accordance with the parameters laid down
hereinabove on 21st March, 2022.
MANMOHAN, J
NAVIN CHAWLA, J
MARCH 15, 2022
AS/js/TS/KA
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